Migration Amendment (Offshore Resources Activity) Bill 2013

WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Monica Biddington and Ian McCluskey
Law and Bills Digest Section
7 November 2013

Note: This Digest is an historical Digest, published after the Bill was passed by Parliament and became an Act.

Commencement: The Bill has been passed by Parliament and is now an Act.[1] Sections 1-3 of the Migration Amendment (Offshore Resources Activity) Act 2013 commenced on Royal Assent, which occurred on 29 June 2013.[2] Schedule 1 will commence on a date to be fixed by Proclamation, however if the provisions do not commence within twelve months of Assent, they will commence the following day. This Digest treats the Bill as prospective.

The Bill seeks to amend the Migration Act 1958 (the Act)[3] in order to overcome a gap in Australian immigration law identified in the Federal Court decision in Allseas Construction S.A. v Minister for Immigration and Citizenship [2012] FCA 529 (‘the Allseas decision’).[4] The Bill does this by inserting proposed section 9A into the Act, and by making a number of minor adjustments to accommodate this new provision.

The Hon Justice McKerracher handed down the Allseas decision on 22 May 2012.[5] Two vessels were engaged in pipe-laying work offshore, in connection with two gas fields some 65 kilometres and 130 kilometres northwest of Barrow Island, off the Western Australian coast. The employees on the vessels were mostly non-citizens. The question the Court had to consider was whether it was necessary for them to have work permits.

To answer this question, it was necessary to consider whether the vessels had ‘entered Australia’ when the pipe-laying work was taking place.

His Honour noted that at common law, the area of a state consists of:

the land to the seashore at the low water mark and

any inland waters and adjacent parts of the sea which are sufficiently landlocked to be regarded as inland waters and part of the state.[6]

In contrast, His Honour noted the migration zone under the Act comprises:

land that is part of a state or territory to the average low water mark on the coast

adjacent parts of the sea which are sufficiently landlocked to form part of a state or territory - and which are also within the limits of a proclaimed port (both criteria must be satisfied)

piers or similar structures connected to such land or to ground under such sea and

His Honour found the vessels in the Allseas decision could not be resources industry fixed structures[9] and came within an exception contained in the Act which meant they were not resources industry mobile units.[10] Therefore the vessels were neither resources installations nor Australian resources installations under the Act, and so subsection 5(6) of the Act, which deems persons on such installations to have entered Australia, did not apply.[11]

The non-citizens working on the vessels did not require permission to work under Australian immigration law as they had not entered Australia. This decision was considered to expose a gap in Australian immigration law as, for example, non-citizens working on offshore resource installations required visas with work rights, while those on nearby pipe-laying vessels did not.

Following the Allseas decision, the Department of Immigration and Citizenship established a Migration Maritime Taskforce to review options for a possible legislative response to the case.[12] The Taskforce recommended to the Minister that all offshore resource workers, including support staff, should be taken to be in the migration zone when involved in activities regulated by Australian law relating to Australia’s natural resources.[13] The Bill seeks to do precisely this.

On 18 June 2013, the Bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee.[14]

The Committee wrote to 50 organisations seeking submissions by 20 June 2013.[15] Seven were received.[16] A public hearing was held in Canberra on 21 June 2013, at which six witnesses gave evidence.[17]

The majority of the Committee recommended that the Bill be passed.[18] The Coalition Senators on the Committee did not.[19]

In their dissenting report, Coalition Senators stated that the Allseas decision exposed no loophole in Australian immigration law.[20] They considered the Bill was introduced at the urging of the ‘Maritime Workers Union’.[21] It seems likely they were referring to the Maritime Union of Australia. The Coalition Senators feared the passage of the Bill would further empower what they considered to be an already over-empowered organisation.[22] They also considered the Bill would have an adverse economic impact.[23]

The Coalition Senators also expressed concern that the Bill’s potential reach could extend beyond limitations contained in the United Nations Convention on the Law of the Sea 1982 (UNCLOS), to which Australia is a signatory.[24] This could mean that certain actions taken by the Minister should the Bill be enacted could be in breach of Australia’s treaty obligations.[25]

Both trade unions who provided submissions to the Committee and whose representatives appeared at the public hearing supported the Bill. The Australian Institute of Marine and Power Engineers was concerned there was no explicit definition of the area to which the proposed amendments were to apply.[27] The Maritime Union of Australia was not concerned with this issue.

In contrast, Shipping Australia Limited (SAL) and the Australian Mines and Metals Association (AMMA) opposed the Bill as the amendments were considered unnecessary.[28] AMMA was concerned the Ministerial determination power under subsection 9A(6) was an inappropriate delegation of legislative power.[29] Both SAL and AMMA provided submissions to the Committee, and AMMA appeared at the hearing.[30]

The Explanatory Memorandum states the financial impact of these amendments will be low and that implementation costs can be met from existing Departmental resources through reprioritisation. It is stated in the Regulation Impact Statement that the lack of knowledge as to numbers of non-citizens working in the offshore resources sector makes it difficult to assess the impact of this Bill on the offshore resources sector.[31]

The Statement of Compatibility with Human Rights (the Statement) can be found at Attachment B to the Explanatory Memorandum to the Bill. As required under Part 3 of the Human Rights (ParliamentaryScrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[32]

The Parliamentary Joint Committee on Human Rights considered that the Bill was unlikely to give rise to any human rights concerns.[33]

Item 6 inserts proposed section 9A into Part I (Preliminary) of the Act. This will provide for‘offshore resources activities’ in proposed subsection 9A(5). A person is taken to be in the migration zone while he or she is in an area to participate in offshore resources activities.[34] Unless expressly provided for in another Act, this proposed section is not to extend the circumstances in which a person is in Australia.[35] This confirms that this provision does not amount to an annexation of areas affected.

‘Offshore resources activity, in relation to an area’, is defined in proposed subsection 9A(5) to be either:

a regulated operation within the meaning of section 7 of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (OPGGSA)[36] that is being carried out, except for any operation determined by the Minister under proposed subsection 9A(6) (discussed below)[37]

an activity performed under a licence or special purpose consent within the meaning of section 4 of the Offshore Minerals Act 1994 (the OMA)[38] that is being carried out, except for any activity determined by the Minister under proposed subsection 9A(6) (discussed below),[39] or

an activity, operation or undertaking being carried out under a Commonwealth, state or territory law determined by the Minister under proposed subsection 9A(6) and within an area determined by the Minster under the same proposed provision.[40]

Proposed subsection 9A(6) empowers the Minister to make determinations for the purposes of proposed subsection 9A(5). Such determinations will be legislative instruments for the purposes of the Legislative Instruments Act 2003, however the disallowance provisions contained in section 42 of that Act are not to apply.[41] These determinations will still need to be tabled.[42] They can take effect immediately. As at the date of completing this Digest, no instruments appear to have been made (noting of course that Proclamation does not seem to have taken place either).

The Minister will therefore have executive powers under these amendments to make determinations excluding various activities from the operation of the Act, as well as expanding the operation of the Act beyond petroleum, greenhouse gas storage and offshore mining activities to anything carried out under Australian law.

In the Explanatory Memorandum it is stated that Australia does have the power under UNCLOS to proceed with this legislation,[43] and it is repeated in the Statement of Compatibility with Human Rights that the Office of International Law in the Attorney-General’s Department has confirmed that Australia does have jurisdiction to enact the legislation.[44]

The power to expand the operation of the Act by Ministerial determination under the combined operation of proposed paragraph 9A(5)(c) and proposed subsection 9A(6) could in theory overreach Australian treaty commitments under UNCLOS. As noted previously, the Coalition members of the Senate Legal and Constitutional Affairs Legislation Committee were concerned about this. The authors of the Regulation Impact Statement also noted there were risks with the scope of the Minister’s powers under the Bill extending to topics beyond the portfolio.[45]

Proposed subsection 9A(8) confirms that a person will be involved in an offshore resources activity in relation to an area whether the person is on an Australian resources installation in the area, or is otherwise in the area to participate or support the activity.

Item 8 inserts amendments to section 41 of the Act. This section presently provides that the regulations may set out conditions to be attached to visas.[46] The sorts of conditions might include limits on subsequent visa applications which may be made onshore,[47] and work limitations.[48] It is possible to waive the need for compliance with certain visa conditions.[49]

Proposed subsection 41(2B) provides that a visa-holder’s permission to work is not to extend to offshore resources activities in relation to an area unless the visa is a permanent visa or the visa is of a type prescribed in the regulations for this purpose. The effect of this is that holders of temporary visas who have work rights will be unable to participate in offshore resources activities unless the type of visa they have is prescribed.

There is a tendency for many to see amendments to immigration law through the prism of asylum seekers arriving by boat. Could this Bill somehow facilitate further boat arrivals and/or could asylum seeker use these provisions to their advantage? The answer to both questions would seem to be no.

The existence of, for example, pipe-laying vessels 65 and 130 kilometres off Barrow Island, would not seem to affect the coming of unauthorised asylum seeking arrivals, regardless of whether such vessels were deemed to be in Australia or not.

Further, the Bill only applies to persons engaged in offshore resources activities in relation to an area. Hypothetically this could occur with an asylum seeker, but examples seem fanciful – an asylum seeker might somehow get to a pipe-laying vessel and then start working on board the ship. He or she would be ‘in Australia’ for immigration purposes. The Irregular Maritime Arrivals provisions contained in recent legislation[50] would apply to an asylum seeker arriving by boat in Australia at a pipe laying vessel. Consequently, he or she would be unable to apply for a protection visa unless permitted to do so by the Minister under section 46A of the Act. If no such permission were granted then the regional processing provisions in the Act could apply, and the asylum seeker could be sent to a regional processing country to have his or her claim for refugee status assessed.[51] At present, the two regional processing countries are Papua New Guinea and Nauru.

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.

[1]. The Bill passed the House of Representatives on 17 June 2013 and the Senate on 27 June 2013. The Bill was then assented to on 29 June 2013. A commencement date has not yet been proclaimed.

[25]. It is noteworthy that the Explanatory Memorandum does not reflect on the operation of these provisions in terms of their consistency with relevant Articles under the Maritime Labour Convention 2006.

For the purposes of paragraph (b), assume that each reference in subsection 356(1) to a substance were a reference to a greenhouse gas substance.’ Chapter 2 of the OPGGSA concerns activities relating to petroleum, and Chapter 3 applies to the injection and storage of greenhouse gas substances.

A special purpose consent is defined in section 4 to be a consent granted under Part 2.6 of the OMA. In this Part (sections 315-327 of the OMA), special purpose consents are defined in sections 315 and 316 to be, in essence, exploration permits. There seems to be some potential for overlap between special purpose consents and exploration licences.

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